Authors- Geetanjali Shahi and Apurva The attitude of the Indian state towards Homosexuality is ...

21 Pages·2016·0.11 MB·English

LOVE AND JUSTICE – THE LEGAL AND SOCIAL IMPLICATIONS OF BEING A HOMOSEXUAL IN
INDIA
Authors- Geetanjali Shahi and Apurva
The attitude of the Indian state towards Homosexuality is now well known. Section 377 of
the Indian Penal Code, 18601 (1860) relates to Unnatural Offences and includes
homosexuality within its domain. In India this Law relating to homosexuality was adopted
from the British penal code dating to 19th century.

Section 377 states: “Whoever voluntarily has carnal intercourse against the order of nature
with any man, woman or animal, shall be punished with imprisonment for life, or with
imprisonment of either description for a term which may extend to ten years and shall also be
liable to fine.”

The thrust of Section 377 is to criminalize sexual acts which are “against the order of nature”.
This provision is based upon traditional, conservative Judeo-Christian moral and ethical
standards, which perceive sex in purely functional terms, that is, for the purpose of
reproduction only.2 Any non-procreative sexual activity is thus viewed as being “against the
order of nature”. Since only penile-vaginal sexual activity is procreative and therefore
acceptable, all penetrative sexual activity, other than penile vaginal, between both
heterosexual and same-sex couples, is considered to be against the order of nature and thus
criminally proscribed under Section 377.

1 Section 377, Indian Penal Code, 1860.

2 Robert Aldrich, “Gay and Lesbian History,” in Gay Life and Culture: A World History, edited by Robert
Aldrich (New York: Universe Publishing, 2006), at Page 11.
Though Section 377 was held to be unconstitutional by a bench of the Delhi High Court3, the
Supreme Court of India, in appeal, reversed the decision of the High Court, effectively re-
criminalizing the acts and identities of millions of LGBT Indians and turning the clock back
on four and a half years of citizenship affirmed by the Delhi High Court, and three decades of
gains made by the LGBT movement in India.

The Indian Supreme Court’s decision in the case of Suresh Kumar Koushal v. Naz
Foundation (hereinafter referred to as Koushal)4 is significant in many ways. However, the
judgment is noteworthy not for what it has achieved, but for all that it has failed to do.
Through this paper, I will attempt to throw light on the history of Section 377 in India, the
LGBT movement, the major breakthrough, that was the Delhi High Court decision, and the
heartache that the Supreme Court decision caused to members of the homosexual community
across the country.

3 Naz Foundation v Government of NCT of Delhi, 160 Delhi Law Times 277.

4 (2014) 1 SCC 1.
CHAPTER 1 – THE ORIGINS OF SECTION 377

A brief look at the historical context to which Section 377 owes its origins and its religious
undertones are pertinent for recognising its underlying assumptions and purpose. An
overview of these factors reveals how Section 377 is indeed based upon an ancient and
archaic conception of sexual relations, which has later been used to legitimize discrimination
against sexuality minorities.5

In England, the first records of sodomy as a crime are recorded as far back as 1290. Texts
from the period prescribed that homosexuals should be burned alive.6 Subsequently,
homosexuality became penalized by hanging under the Buggery Act of 1533.7 After a series
of repeals and re-enactments, The Buggery Act of 1533 was again re-enacted in 1563 by
Queen Elizabeth I, after which it became the charter for the subsequent criminalization of
sodomy in the British Commonwealth. Oral-genital sexual acts were later removed from the
definition of buggery in 1817.8 And in 1861, the death penalty for buggery was formally
abolished in England and Wales. However, sodomy or buggery remained as a crime “not to
be mentioned by Christians.”9

5 Michel Foucault, “The Repressive Hypothesis,” in The History of Sexuality, Volume I: An Introduction,
translated by Robert Hurley (New York: Vintage Books, 1990), at Page 43.

6 Elliott, Dyan. “Sexual Scandal and the Clergy; a Medieval Blueprint for Disaster.” Why the Middle Ages
Matter; Medieval Light on Modern Injustice (2012) at Pages 90 to 105.

7 Beattie, Cordelia. “Gender and Femininity in Medieval England.” Writing Medieval History (2005) at Pages
153 t0 170.

8 Brady, Sean. Masculinity and Male Homosexuality in Britian, 1861-1913. Palgrave Macmillan. Basingstoke,
England & New York, 2005.

9 LeBarron v. LeBarron, 35 Vt. 365, at 367 (1862). An English case from the colonial era stated that
"Christianity is part of the law”.
Around the same time, in 1861, to be precise, the British crown, which had by then taken
formal control over India, introduced its anti-sodomy law in India in 1861 through Section
377 of the Indian Penal Code. With time, English Law was reformed and the Sexual Offences
Act of 1967 decriminalized the acts of homosexuality and sodomy between two consenting
adults.10

It is pertinent to note that the introduction of Section 377 in Indian penal law was contrary to
then existing Indian traditions, which did not treat sodomy as a crime.11 The introduction of
Section 377 and the practices of cultural imperialism by the British resulted in a change in
Indian society’s conceptions of sexual relations.

Today, homosexuality in Britain has been decriminalized for close to five decades, while the
legal system in India continues to treat homosexuals, as indeed anyone with an alternate
sexual orientation, as criminals.

10 Sexual Offences Act, 1967 (1967 c. 60).
11 R. Vanita & S. Kiwai, eds. Same Sex Love in India (New York: St. Martin‟s Press, 2000) (hereinafter “Same
Sex Love”) at Page 194.
CHAPTER 2 – COMING OUT OF THE CLOSET – A DEMAND FOR EQUAL RIGHTS

The Delhi High Court’ judgment in 2009 built upon a decade of work by the LGBT activists.
As a political demand, the struggle against Section 377 can possibly date back to the protest
against police harassment which was organised by AIDS Bedhbhav Virodhi Andolan
(ABVA) in 1991 where for the first time the demand for the repeal of the law was raised in a
public manner.12 Since then the LGBT community has engaged the public attention through
numerous protests, demonstrations, Fact Finding Reports, Conferences, Film Festivals and
the well-known, pride marches.13

The legal struggle goes back to the first legal challenge to Section 377 which was filed by
ABVA in 1994, in response to a statement by Kiran Bedi that she could not distribute
condoms in prison as it would amount to abetting an offence under Section 377.14 However,
the petition was dismissed as the ABVA group became defunct.15 The next key development
was the filing of a petition by the Naz Foundation challenging Section 377 in 2001.

The uniqueness of the Naz petition is that though it began as a legal petition by one NGO it
slowly gathered wider support both within the LGBT community as well as within sections of
the public. Thus the Naz petition began to carry the burden of the expectations of a

12 ABVA (1991), 'Less than Gay - A Citizens Report on the Status of Homosexuality in India', ABVA
Publication, New Delhi.

13 Fernandez, Bina, ed. (1999). Humjinsi: A Resource Book on Lesbian, Gay and Bisexual Rights in India.
Mumbai: India Centre for Human Rights and Law at page 35.

14 Friese, Kai; Safe Custody – Tihar Jail Bans Condoms, India Today, dated 31st May, 1994, available at
http://indiatoday.intoday.in/story/tihar-jail-bans-condoms/1/293411.html accessed on 04.01.2016.

15 Narrain A, 'Human Rights and Sexual Minorities: Local and Global Contexts', Refereed article, Law, Social
Justice & Global Development (LGD), 2001 (2) at Page 3.
community, with each torturous turn in the legal proceedings followed with great interest by
members of the community. Initially the way the LGBT community was kept abreast of the
legal developments was both through the organising of periodic consultations on the petition
by the Lawyers Collective (the Lawyers for Naz Foundation) for LGBT groups as well as by
regular postings on an LGBT listserve. However the media soon began to evince more
interest and report regularly on the developments.

So, when the Delhi High Court Bench of Chief Justice Shah and Justice Muralidhar heard the
final arguments in 2008, they had to contend with the range of opinions, all of which had to
be heard and considered before the judgment could be delivered. Though the final arguments
were completed in November 2008, the judgment was finally delivered only on July 2, 2009
It was an eagerly awaited judgment both in terms of what it could mean for the LGBT
community as well what it would hold for Indian Constitutional law. In both contexts it did
not disappoint.
CHAPTER 3 – DELHI HIGH COURT JUDGMENT

On a purely legal basis, the beauty of the judgment, was that it skilfully mixed originalism,
rarely invoked by Indian courts, with pragmatism in constitutional interpretation.
Additionally, and perhaps more importantly, the judges display great humanism, sensitivity,
and empathy — qualities that are now rare in courtrooms in India.
The Court held that criminalisation of consensual sex between adults in private violates the
Constitution’s guarantees of dignity, equality, and freedom from discrimination based on
sexual orientation (Articles 21, 14 and 15). Thus, the Judges ‘read down’ Section 377 so that
it no longer criminalises consensual sex between adults in private.
However the Judges held that Section 377 will continue to govern cases of non-consensual
sex between adults as well as any sex with children. The Court held that an adult would be
any person above 18 and that any person below 18 would be presumed not to be able to
consent to a sexual act.
The Court also noted that this clarification of the law would hold until parliament chose to
effectuate the recommendations of the 172nd Law Commission Report, which
simultaneously recommended the amendment of rape laws and the repeal of Section 377.16
The Court also noted that the judgment will not result in the reopening of criminal cases
involving Section 377 that have already attained finality.
The Judges quote heavily from progressive judgments both in India and in other countries
that have found rights to dignity, privacy, equality, and non-discrimination. These four

16 Law Commission of India, 172nd Report on Review of Rape Laws, 2000 (March 25, 2000).
concepts form the basis of the Court’s judgment. In order for the dignity of each person to be
protected, there must be a right to privacy that protects against arbitrary state interference
with personal autonomy. Similarly, equality is meaningless without a corresponding
prohibition on discriminating against certain classes of people.
The Justices also employ a novel concept of ‘constitutional morality’ to avoid discussing the
religious propriety of homosexual conduct. Basically, they say that the government should
only be concerned with the secular values enshrined in the Constitution, not with the moral
codes of any particular religion.
More important however, was the impact that the decision had on the social scenario in India.
Not only did the Judgment give new meaning to the politics of identity in India, it also, by
acknowledging the distinct status of persons, whose only common bond is sexual orientation,
and addressing them as a collective body, the judgment recognized the emergence of new
social identities in the country.

In doing so, the decision, unlike any other decision before it, went a long way towards
diminishing popular, but irrational, moral condemnation of stigmatized groups. The mass
publicity and fanfare that heralded the decision presented a rare opportunity for activists to
reshape public opinion and influence a wide social debate about gay rights. This was
especially important as homosexuals and other disaffected groups cannot only rely on courts
to advance their civil rights agenda, but also at some stage need general societal
CHAPTER 4:
BACK TO THE DARK AGES: THE SUPREME COURT DECISION IN KOUSHAL V NAZ.

“If there is one constitutional tenet that can be said to be underlying theme of the Indian
Constitution, it is that of ‘inclusiveness’. This Court believes that Indian Constitution reflects
this value deeply ingrained in Indian society, nurtured over several generations… Where
society can display inclusiveness and understanding, such persons can be assured of a life of
dignity and non-discrimination. This was the ‘spirit behind the Resolution’ of which Nehru
spoke so passionately.”17

The Supreme Court in the case of Suresh Kumar Koushal and Another v Naz Foundation and
others18 held that the aforementioned paragraph is constitutionally untenable. In the days that
have elapsed since the judgment, it has already gone down in public discourse as one of the
Court’s most reviled decisions.

On a close reading, the judgment is based on a narrow and blindfolded interpretation of the
law, ignoring the momentous changes in society and notions of morality that India is
witnessing. Further, the judgment, in many parts, relies on shaky precedent, does not explain
the logic of its conclusions, and is surprisingly dismissive of substantial evidence that was
placed before it. In this chapter, I will attempt to throw light on the reasons given by the
Court (or a lack thereof) for arriving at its conclusions.

17 Naz Foundation v Government of NCT and Ors, 160 (2009) DLT 277 at Paragraph 131.

18 (2014) 1 SCC 1.
A. JUDICIAL DEFERENCE AND THE PRESUMPTION OF CONSTITUTIONALITY

The Supreme Court in its decision has proceeded on the basis that there exists a presumption
of constitutionality in case of Section 377, IPC. At Paragraph 26 of the Judgment, the Court
holds: “However, keeping in mind the importance of separation of powers and out of a sense
of deference to the value of democracy that parliamentary acts embody, self-restraint has
been exercised by the judiciary when dealing with challenges to the constitutionality of laws.
This form of restraint has manifested itself in the principle of presumption of
constitutionality.”

It is the respectful opinion of the writers, that this observation is unsustainable in law. Section
377 was held to be unconstitutional by the Delhi High Court, a Constitutional court, which
read down the law to the extent of its unconstitutionality, in its originating jurisdiction.
Further, that the Union of India did not appeal the High Court decision and submitted before
the Supreme Court that it found “no legal error” in the High Court judgment, bolstering the
position that no presumption of validity was attached to Section 377 before the Supreme
Court.

It is also pertinent to note that the Court’s finding regarding the presumption of
Constitutionality is in conflict with previous decisions of the court delivered in: Deena alias
Deen Dayal v. Union of India19 (bench comprising three judges) and Bachan Singh v. State of
Punjab20 (bench comprising five judges), which held that where a law is challenged under

19 1984 SCR (1) 1.

20 AIR 1980 SC 898.